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Jitendra Singh Chauhan v. D.I.O.S. Meerut & Another - WRIT - A No. 10663 of 1992  RD-AH 74 (13 February 2004)
Court No. 23
Civil Misc. Writ Petition No. 10663 of 1992
Jitendra Singh Chauhan Vs. D.I.O.S/Meerut & another
The petitioner has filed this writ petition for issuance of a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in the working of the petitioner as L.T. Grade Teacher at Janta Inter College, Loomba, District-Meerut till a duly recommended/selected candidate is sent by the U.P. Secondary Education Services Commission, Allahabad and to make payment of salary to the petitioner w.e.f. 16.1.1992, upto date, as and when the same falls due along with other teaching staff of the college. Vide order dated 26.3.1992, standing counsel was granted three weeks' time to file a counter affidavit and the petitioner was directed to serve notice to respondent no.2 out side the court personally to file a counter affidavit within the same period and until further order of this Court the respondents were directed to pay salary to the petitioner or show cause within one month.
Notices were served on respondents 1 and 2. The respondent no.2 received notice dated 25.4.1992 through the principal of the college, who has appended his signature on the summons, which is Annexure No.1 to the affidavit of service dated 5.5.1992 filed by the petitioner, but they have not filed any counter affidavit in rebuttal. The service is deemed to be sufficient on the respondents. Vide order-dated 23.1.2004 this court allowed the amendments sought for by the petitioner in the array of the parties impleading respondents 3 and 4. The amended relief sought for is in the nature of mandamus commanding the respondent no.3 to decide the issue of regularization of the services of the petitioner in accordance with law.
I have heard Sri Kamlesh Shukla, learned counsel for the petitioner, and Sri Mayank Saxena, learned standing counsel for the respondents and perused the record.
The facts of the case of the petitioner in brief are that in the college run by the respondent no.2 a substantive vacancy fell vacant on 30.6.1991on the superannuation of Sri Kartar Singh, who was discharging his duties as principal. Sri Jai Pal Verma , the senior most lecturer working in the institution, was promoted as ad hoc principal and his appointment was duly approved by the District Inspector of Schools, Meerut on 17.11.1991 and due to promotion of Sri Jai Pal Verma, the vacancy occurred in the lecturer grade and one Sri Rajendra Singh, the senior most L.T. Grade teacher was duly promoted as lecturer in the vacancy of Sri Jai Pal Verma. In consequence of which the vacancy caused due to promotion of Jail Pal Verma, the Committee of Management- respondent no.2 proceeded to make an ad hoc appointment on the said post in accordance with the provision of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, (hereinafter referred to as (Removal of Difficulties) (Second) Order, 1981).
Applications were invited from eligible candidates on the notice dated 1.1.1992. The petitioner along with other candidates applied for and the petitioner was selected by the Selection Committee on 8.1.1992. The name of the petitioner being at Serial No.1 was recommended for appointment as L.T. Grade teacher and the Committee of Management-respondent no. 2, unanimously vide its resolution no.2 resolved to appoint the petitioner. Relevant documents were sent to the office of the District Inspector of Schools on 8.1.1992 for his prior approval under the provision of Clause 2 (3) (ii) of (Removal of Difficulties) (Second) Order, 1981, which was duly received in the office of the District Inspector of Schools. The District Inspector of Schools failed to communicate his decision within a period of 7 days from the date of receipt of the entire documents and the Committee of Management while exercising its power under Clause 2 (3) (iv) of (Removal of Difficulties) (Second) Order, 1981 issued an appointment letter in favour of the petitioner on 16.1.1992. The petitioner joined his services on the same date i.e. 16.1.1992 and his salary bill was forwarded by respondent no.2 to the District Inspector of Schools to deposit the receipt of the salary bill.
It is also submitted by the counsel for the petitioner that no payment of salary was made to him, which was binding on the District Inspector of Schools, as provided under Section 3 of the U.P. High Schools and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971 by every 20th day of each month. Though the salary of the rest of the staff-teacher had been passed.
The petitioner being aggrieved due to the failure on the part of the respondents for making the payment of the salary invoked the jurisdiction of this court in writ petition. On 26.3.1992 an interim mandamus was issued directing the respondents to pay salary to the petitioner, but since the respondents did not comply with the order of this court. Neither any payment of salary was made nor cause was shown. By this court a direction was issued on 6th May, 1992 for making the payment of salary to the petitioner within a period of 15 days. Counsel for the petitioner states that till date the petitioner is working on the post and is now being paid his salary under interim order dated 26.3.1992 regularly and no candidate selected by the Commission has turned up to join on the post the petitioner is working till date.
It is settled law as laid down in A.I.R. 1966 Alld. page 156, A.I.R. 1962 Alld. ppage 407, A.I.R. 1987 S.C. page 479 and 1999 (82) Factory Law Report, page 709 that if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted as true and correct drawing the presumption in favour of the petitioner in terms of Section 114 Illustration (G) of the Evidence Act. In the absence of counter affidavit, this Court is left with no option but to accept the averments made in the petition to be correct and true.
Considering the facts and circumstances of the case, since the petitioner has already been working in the institution for a considerable long period, though under the interim order of this court and is being paid salary regularly, and, more so, as neither any candidate duly selected and recommended by the Commission for appointment on the post has turned up to join, the respondents no.3 is directed to consider the case of the petitioner for regularization of his services in accordance with law preferably within a period of three months from the date of production of a certified copy of this order.
It is also directed that respondent no.2-the Committee of Management shall also co-operate and furnish the necessary service record of the petitioner as and when required by respondent no.3
With these directions, the writ petition is disposed of finally.
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